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Hard News: Copywrong

Posted at 11:09AM on 8 Dec 06. Permalink.

There are some things to applaud in the Copyright (New Technologies and Performers' Rights) Amendment Bill. It finally brings to the table an exception for the format-shifting of music that was proposed more than five years ago, it promises to expand and flesh out the concept of "fair dealing" with copyright material, and it tidies up a silly situation where transient copying by ISPs in the course of delivering your dataz was a breach of the Copyright Act.

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And then there's the bad stuff. Specifically, "anti-circumvention" provisions that emulate America's Digital Millennium Copyright Act (DMCA) to the point of applying criminal penalties to actions that have previously been considered no business of our Copyright Act.

At a guess, the anti-circumvention provisions are there as a quid pro quo for format shifting, which has been strongly opposed (even though everyone does it) by the music industry. The strange thing is that those provisions apply in circumstances that were specifically ruled out at an earlier stage of policy development. And format shifting - which was a key feature of proposed amendments from the very beginning - is to be subject to a two-year sunset clause. Unless they are actively renewed, your rights to rip to your iPod will automatically expire.

No, it's not the kind of crazy-assed copyright law the Australians are in the process of passing, but we shouldn't ever use Australia's laws on digital media as a benchmark, because their legislators have repeatedly passed bad laws. We have been - and ought to be - a bit better than them.

Anyway, the story is neatly laid out on the MED website here.

The thread can be picked up from the 2001 MED discussion paper, Digital Technology and the Copyright Act 1994, which proposed an exception for the format-shifting of legitimately-purchased music, to end the unsatisfactory situation where conventional uses of music - say, making a tape to listen to on your car stereo - were a breach of the Copyright Act.

The led to the 2002 Position Paper, which fleshed out the ideas of the previous document. What it says about MED lawyers' view on the status of Technological Protection Measures (TPMs) is worth quoting:

106. The Ministry's preferred policy response is that section 226 retain its focus on copy control measures, and not provide legislative protection against the circumvention of TPMs which only control access. That is, for section 226 to apply, the TPM circumvented must prevent copying, and the circumvention must be for the purpose of copying or the infringement of other restricted acts of the copyright owner in the Act (including potentially a new technology-neutral right of communication).

107. In proposing this policy response, the Ministry intends, for example, that the supply and use of devices that allow the circumvention of regional zone access protection (to allow the playing of legitimately purchased DVD movies or games etc. from other zones), would not infringe the TPM provisions. If, however, a circumvention device directly facilitated the infringement of copyright, that would be a breach of section 226. The Ministry also seeks to avoid, in New Zealand, situations where a court may find that devices such as DVD players or PlayStation consoles constitute TPMs (with copy control) by virtue of the fact that a small amount of data may be temporarily stored or reproduced in the device's RAM (see also Part Two of this paper on transient copying exception). 37

It is the Ministry's view that it is not the role of the Act to protect access control technology, which is used in some cases to price discriminate and control geographical distribution of works, to the detriment of New Zealand users.

Store that last paragraph in memory, because its sentiments begun to disappear from this point. Here's the paper on the proposed amendments, from June 2003:

Prohibit the supply or manufacture of devices, means or information that circumvent technological protection measures, where circumvention could enable infringement of any of the copyright owner’s exclusive rights, and provide criminal penalties for large scale commercial dealing in circumvention devices, means or information;

And the Cabinet paper of the same year:

…agree to amend the provision relating to technological protection measures … so that the prohibition against the making, importing, hiring and selling of devices, services or information designed to circumvent "copy protection" be expanded to cover devices, services or information that circumvent technological protection measures that protect all rights provided to copyright owners, including communication, not just copying; and to facilitate the actual exercise of permitted acts where technological measures have been applied …

Two different aims in one paragraph: to bring criminal penalties to bear on the supply of devices or information designed to circumvent all TPMs, and not just those relating to copying and distribution - and to "facilitate" such circumvention where it is for the purposes of a "permitted" act.

And now, the draft bill:

“ … amend the provision relating to technological protection measures--- so that the prohibition against the making, importing, hiring, and selling of devices, services, or information designed to circumvent "copy protection" be expanded to cover devices, services, or information that circumvent technological protection measures that protect all rights provided to copyright owners (including communication, not just copying)”

And ...

“introduce an offence (carrying a sentence of a fine not exceeding $150,000 or a term of imprisonment of up to 5 years, or both) for commercial dealing in devices, services, or information designed to circumvent technological protection measures:”

So does the format-shifting provision mean the law will help us remove DRM on music files so we can play them on a different device? Or was I potentially in breach as the publisher this week of a discussion thread that contained advice on removing DRM from music files? Not clear.

The bill specifically (if vaguely) exempts one category of device that would seem to fall afoul of the intent of the new provisions: region-free DVD players.

Weighing in with significant penalties for circumvention like this raises some problems. One is that this it expands the scope of copyright law, even though, as A.J. Park pointed out, "a law which makes defeating technical protection of a copyright work illegal is not really copyright law at all. Nevertheless because it is for the benefit of copyright owners, it has been included in copyright legislation and has been referred to as 'paracopyright'."

The purpose of copyright law is not, as is often supposed, to serve the interests of copyright owners but to serve the public interest by offering enough protection to creators that they will be minded to continue to create new works. But the proposed amendments potentially place the force of the law behind business models that may be hostile to the public interest.

Apple Computer's product lock-in (iTunes Store-purchased files only play in iTunes or on iPods, and they can be difficult to move around) doesn't present a practical problem for me at the moment: I like my iPod. But what say things change? What say I'm faced with purchasing that music all over again because the format in which I purchased it is obsolete? This isn't just theoretical: it's exactly what Microsoft has just done with the Zune player, which won't play the (ahem) Plays For Sure files Microsoft was selling from MSN Music right up until the Zune's launch on November 14. If customers want to play the music they paid money for on the Zune, they'll have to pay again. Is it really the job of the statutes to protect that sort of behaviour?

There are various other reasons to doubt the wisdom of putting this stuff in copyright law, as detailed by Cory Doctorow's comments on the New Zealand bill, Ben Gracewood's blog post and the EFF's unintended consequences of the DMCA page.

Then there's the libraries' view:

… such technological measures do not distinguish between uses which are not authorised by the copyright owner but are permitted by law, on the one hand, and those uses which are not authorised by the owner and also infringing. For example, the same copy-control mechanism, which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate fair use/fair dealing copies.

---

Anyway, quick comment on the iTunes Store: it's a bit of a mess. Buying music is easy, finding it rather less so. Try clicking the "Quick Link" marked "browse" on the home page, or any other page. WTF?

I still haven't worked out a way to browse, say all the available rock releases, as opposed to just the ones iTunes is directing my attention to. The page from the "Local Sounds" link or banner only contains one album, by Frontline. But if you scroll down the home page, you see a whole lot more in "Just Added - New Zealand".

Using eMusic as a point of comparison, iTunes seems surprisingly clunky and not as much fun. I've bought several things (that exclusive Flaming Lips EP was hard to refuse) but I don't think I'll be giving up my eMusic sub.

And where are those two million songs?

Finally, Michael Bassett's latest "newspaper column" did not appear in an actual newspaper, only on his website. Has the Dom Post given him the boot? (Update: It appeared in The Press, as did a response from Nicky Hager.)

Like, seemingly, everyone who claims to be rebutting Nicky Hager's The Hollow Men, Bassett basically ignores the substance of the book. Bassett simply contrives to be more odious and abusive than everyone else. He basically calls the editors of the Dom Post idiots and implies that TV3 has been dishonest in its presentation of the facts. He slings off at the "hacks" so "easily beguiled" by Hager, who he compares not only to David Irving but to - get this - Stalin. He pretends his own conflict of interest - that he posed as an independent commentator on matters in which he was directly involved - doesn't exist.

Can this really be the same commentator who railed against the shooting of messengers in the Benson Pope case? For whom the "prima facie" appearance of having lied was enough? (And if you don't think National point-blank lied on a number of issues last year, you haven't actually read the book. I may differ with the author on some of his analysis, but the degree of deception is well enough demonstrated to anyone who can read English.)

Really, what a dreadful man Bassett is.

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Gary Hutchings
From: wellington
Since: Nov 2006
Posts: 78

Posted at 11:09AM on 8 Dec 06. Permalink.

Finally, Michael Bassett's latest "newspaper column" did not appear in an actual newspaper, only on his website. Has the Dom Post given him the boot?

While offering no opinion on Bassett myself, The Column did run in The Press on Tuesday 5th December page A9.

Ben Gracewood
From: Orkland
Since: Nov 2006
Posts: 46

Posted at 11:26AM on 8 Dec 06. Permalink.

Thanks Russell. Your historical overview makes very interesting reading. I'd like to know who or what was involved in the slow but steady policy shift from "it's not our place to prevent circumvention" to the current heavy-handed anti-circumvention position. Could it perchance have anything to do with the emergent digital music market?

A lot of people seem to think this only affects music. But it really scares me the way the DMCA has been applied in the USA. Basically any company can arbitrarily decide that its 'content' is worthy of 'protection', and woe betide anyone that believes they have a right to access that 'content'.

The proposed amendments appear to make provision for circumvention to allow 'permitted' uses, but you better believe that the onus will be on the user to prove 'permission' against a cluster of corporate lawyers.

BenWilson
Since: Nov 2006
Posts: 1386

Posted at 11:28AM on 8 Dec 06. Permalink.

Actually, his rebuttal is even less substantive than Brash's, which gives at least a few examples of what he considers to be inaccuracies.

What Basset says is pretty much what he accuses Hager of - a conspiracy theory. A vast media conspiracy to believe Hager's hundreds of pages of documentation over his and Brash's, um, assertions and good character?

So much for yesterday's news.

Re: copyright laws. Call me a crooked kook, but how many people really give a crap what the law is on ripped tunes? I can see that it can affect the way big companies deliver new music formats via new revenue channels, but when it comes to ripping off music, is anything going to change? Kids will still borrow a CD from a mate and rip it, download rips off P2P, directly swap hundreds of GB of files, and listen to them on MP3 players. All seems a bit like antispam laws - good talking point, utterly ineffective.

Steve Baker
From: wellington
Since: Dec 2006
Posts: 6

Posted at 11:29AM on 8 Dec 06. Permalink.

I've been going through the Copyright Amendment Bill and there seem to be concerning aspects relating to DRM. While the original intent may not have been to criminalise the breaking of DRM to view legitimately owned content, the current text of Section 226 seems to say otherwise.

In its current form the only exclusions for breaking DRM are for library archivers and educational security researchers - and even then they have to ask the copyright owner for a non-DRMed version of the content first (and wait a reasonable amount of time for the inevitable rejection).

Possible changes to set things right might be:
- Allow DRM circumvention to view content that is legitimately owned (this would allow watching DVDs on Linux)
- Allow DRM circumvention for the deaf or blind to access content
- Remove the requirement for having to ask permission from the copyright holder to legitimately remove any DRM.

Ben Gracewood
From: Orkland
Since: Nov 2006
Posts: 46

Posted at 11:40AM on 8 Dec 06. Permalink.

Additionally, how much does this (anti-circumvention) have to do with forays into free-trade with the USA? Or the WIPO Copyright Treaty of 1996 (which I can't see New Zealand joining because doesn't Article 12 effectively ban multi-region players)?

Or am I getting too tinfoil-beanie for my own good?

Craig Young
From: Wellington
Since: Nov 2006
Posts: 41

Posted at 12:02PM on 8 Dec 06. Permalink.

I find it fascinating, though, that even as Tory media hacks try to paint Nicky as a conspiracy theorist, the volumes in question are still heading off shelves, and there has already been perceptible damage to National's opinion poll ratings. Bassett and hacks like Jane Clifton can whine and stamp their collective feet petulantly as much as they like. Nicky has made a sober, evidence-based evaluation of the facts at hand, and has contributed to the good health of democratic accountability and representation in this country.

Incidentally, Russki, is there going to be a future column about political donor reform from your corner? I'm working on one right now.

Craig Y.

Herr Dummkopf von Kranken-Brainen
From: Auckland
Since: Nov 2006
Posts: 4

Posted at 12:09PM on 8 Dec 06. Permalink.

Okay, so while I'm good and angry who's the best MP(s) to start lobbying about this DCMA-wannabe? Or is it too late?

Steve Baker
From: wellington
Since: Dec 2006
Posts: 6

Posted at 12:18PM on 8 Dec 06. Permalink.

My first guess would be Nandor - he seems to have a fairly good grasp on Open Source issues.

Tristan
From: Auckland
Since: Nov 2006
Posts: 47

Posted at 12:18PM on 8 Dec 06. Permalink.

'The forgotten man of the fish and chips photo"

is the best way to describe Bassett. While everyone else in that photo is immediately recognizable and all have left their mark on NZ. Almost no one can pick him out. A isn't he just so damn bitter about it.

Rob Stowell
From: Christchurch
Since: Nov 2006
Posts: 370

Posted at 12:30PM on 8 Dec 06. Permalink.

Gotta love Basset's description of Rogernomics as an act of pure- and let's not forget mainstream!- altruism: "Businessmen wanting main stream economic policies to increase growth and employment opportunities for New Zealanders."

Hamish
From: The A.K.
Since: Nov 2006
Posts: 126

Posted at 12:34PM on 8 Dec 06. Permalink.

Call me a crooked kook, but how many people really give a crap what the law is on ripped tunes? I can see that it can affect the way big companies deliver new music formats via new revenue channels, but when it comes to ripping off music, is anything going to change?

I supposed the important point is that people who make the 3rd party tools for 'fair use' (if not legal use) become possible targets. No doubt there will always be people willing to give their time and knowledge towards creating/breaking codecs to rip various formats, but it's getting riskier.

BTW, totally agree with Russ about the various blogs/people/commentators who get very vitriolic on Hager but fail to address anything about the book itself. Probably couldn't be bothered reading it.

BenWilson
Since: Nov 2006
Posts: 1386

Posted at 1:15PM on 8 Dec 06. Permalink.

Hamish, I'm really thinking of things like the landmark closure of Napster, which shut down mp3 downloading for all of about a week. Technology moves so much faster than the law. Every time they make an anti-circumvention law, an anti-circumvention-law-circumvention is invented and just makes a new set of nerds rich. People who want ripz will get them, people who don't will pay. Computer nerds and lawyers get rich and nothing changes.

Don Christie
From: Wellington
Since: Nov 2006
Posts: 1061

Posted at 1:50PM on 8 Dec 06. Permalink.

all me a crooked kook, but how many people really give a crap what the law is on ripped tunes?

I do. I run a Linux (Ubuntu) distribution on all my computers. It is far more secure and user friendly than any Windows system. I like having a choice of what to put on *my* computers. I don't have a seperate DVD player or a very workable TV. I rent DVDs often. I have never copied a film.

DRM legislation in the USA already makes being able to play DVDs on my PC an extra step as the Ubuntu distributers are not allowed to distribute the necessary decryption software bundled with Linux in the USA.

This law will make playing those DVDs I rent on anything other than a Windows system illegal. It will criminalise my hitherto legitamate goal of wanting to watch what I have paid good money for.

That stinks.

Paul
Since: Dec 2006
Posts: 1

Posted at 2:11PM on 8 Dec 06. Permalink.

Agree absolutely with you, Ben. Too many bullsh*t laws encourages non-compliance IMO.

When making laws, why don't we only make those laws we really need and are understood and accepted (as far as possible) by those affected.

Chances are that enforcement would be a doddle.

BenWilson
Since: Nov 2006
Posts: 1386

Posted at 2:13PM on 8 Dec 06. Permalink.

Don, you don't have to say if you're going to continue using it anyway :-)

Ben Austin
From: London
Since: Nov 2006
Posts: 552

Posted at 2:38PM on 8 Dec 06. Permalink.

It comes down to simplicity – a legislative / pricing regime needs to be as simple and reasonable as possible if it is to be effective. Sure there are many examples of complicated laws or pricing, but usually one can only get away with that when the subject matter is essential – like say taxes.

Widespread consumer revolt is going to be the result of this stupid amendment bill – why bother even trying to preserve some legality when it is so dammed inconvenient? I confidently predict we will adopt a progressively stronger culture of IP piracy.

The Copyright Amendment Bill sadly has only one good thing going for it – it has not succumbed to the trend of extending the life of copyright. I think the 50 year rule is at least twice as long as it needs to be, but it is far better than say 70 or 90 years like it is in some other jurisdictions.

Tim Darlington
Since: Nov 2006
Posts: 13

Posted at 3:48PM on 8 Dec 06. Permalink.

Product lock-in is one reason I still buy CDs. I noticed 3 News running an extended promotion for the new Itunes store, which included cheerfully telling us it will sell albums for under $20 without once mentioning the restrictions that will apply to them. They can fuck off - I'd rather pay full price for something that won't tell me what I can and can't play it on.

Clarke
From: Wellington
Since: Nov 2006
Posts: 61

Posted at 4:42PM on 8 Dec 06. Permalink.

If you're wanting to lobby MPs, Judith Tizard is your best bet as she's Minister of Commerce and this is her balliwick (and her Ministry that's producing the advice.)

The key issue with the legislation as proposed is that whatever bone we get thrown over format shifting will be completely trumped by the TPM provisions. In other words, the nastier bits of the music and movie cartels don't give a toss about what the new law will allow in Fair Use, because they can simply prevent us doing anything with the content via a TPM.

If this legislation passes in its current form, the effect will be the recording industry and the movie studios suing Kiwis for allegedly "stealing" their content - just like in the US.

matthewbuchanan
From: Auckland
Since: Nov 2006
Posts: 115
Moderator

Posted at 9:07PM on 8 Dec 06. Permalink.

I noticed 3 News running an extended promotion for the new iTunes store, which included cheerfully telling us it will sell albums for under $20 without once mentioning the restrictions that will apply to them.

Actually, with the exception of the Campbell Live interview with Chris Hocquard, 3's coverage neglected to even mention it was a "store" that had launched. They simply reported that iTunes was now available in New Zealand, as if we hadn't been able to use iPods until this week...

Sebastian
From: Berlin, Germany
Since: Nov 2006
Posts: 11

Posted at 9:13PM on 8 Dec 06. Permalink.

Excuse if I don´t know what exactly is allowed under "fair use", as I am observing this discussion from the other side of the world. Over here there is the right to make a copy of legally purchased content for personal use, as long as you are not actively bypassing copy prevention systems, built in to some digital formats.
So I wonder whether in NZ it would be still allowed to make a copy of a non DRM protected format for personal use.
In geneal I would say the proposed new copyright legislation looks fairly restrictive and the shift from a reasonable weighting of public interest against corporate greed to absolute priority for coporate greed is very disappointing.

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